An examination of Scott's particular activities in connection with Local 100 reinforces this Court's conclusion that the public-concern requirement has been satisfied here. Scott's formation of Transit Women United, her publication of "Hell on Wheels," her advocacy for New Directions, her running for union office, and her representation of workers against management in disputes cannot fairly be characterized as matters "personal in nature and generally related to her own situation." Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993) (quoting Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). See also Connick, 461 U.S. at 148, 103 S. Ct. at 1691 (majority of grievances were those of "a single employee upset with the status quo."). In view of other cases upholding findings of public concern,
the labor relations of the TA, the organization of its rank-and-file workers, and the safe and efficient operation of New York City trains are certainly matters of public concern.
The Pickering/Connick balancing test next requires consideration of the employer's interests, such as "whether the statement impairs discipline by superiors or harmony among co-workers . . . or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin, 483 U.S. at 388, 107 S. Ct. at 2899. In this case the TA has offered no such evidence that might indicate that Scott's activities, or those of the union in general, had a detrimental effect on its overall operation. Accordingly, assuming that plaintiffs' anti-union claim is not barred on grounds of collateral estoppel, it should survive the public-concern analysis.
C. The Waiver-of-Rights Claim
The parties are in agreement that the ALJ did not address the issue of whether the alleged compromise offered by Goodman was an independent violation of her First Amendment rights.
However, defendants argue that the filing of this lawsuit is not a matter of public concern; that Goodman's statement is inadmissible under Fed. R. Evid. 408 and thus not a proper basis for a section 1983 claim (Def. Mem. 3/17/94 at 4; Defendants' Memorandum of Law dated 5/16/94 ["Def. Mem. 5/16/94"] at 2-3); and that the Arbitrator's decision renders moot any further litigation regarding Scott's claims. (Def. Mem. 12/14/95 at 2-3.) For the reasons that follow, this Court concludes that defendants' arguments are unavailing.
1. The Public-Concern Requirement As Applied to Scott's Threatened Lawsuit
It is well settled that the First Amendment protects the right to bring a lawsuit based on matters of public concern, and thus retaliation against an initiator of such a suit, by itself and independent of the merits of the underlying claim, can give rise to a cause of action. See Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985); see also Wu v. Thomas, 996 F.2d 271, r'hrg denied, 11 F.3d 169 (11th Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1543 (1994).
However, the circuit courts are split as to whether, as plaintiffs contend (see Pl. Mem. 4/1/94 at 21-24), the filing of a civil rights lawsuit is per se a matter of public concern or whether the subject matter of the lawsuit itself must undergo the public-concern analysis. Compare Greenwood, 778 F.2d 448 (8th Cir. 1985) (the filing of an EEOC charge and a civil rights lawsuit are activities protected by the First Amendment), with Yatvin v. Madison Metropolitan School District, 840 F.2d 412 (7th Cir. 1988) (rejecting per se rule of Greenwood, as "not every legal gesture . . . is protected by the First Amendment."), and Rice v. Dept. of Transportation, 887 F.2d 716 (6th Cir. 1989), vacated on other grounds, 497 U.S. 1001 (1990) (First Amendment does not convert every public employee grievance into a matter of public concern). The Second Circuit has not yet taken a stance on this issue. However, because this Court again concludes that the issues underlying Scott's threatened lawsuit were based on matters of public concern,
it need not resolve the merits of a blanket rule, as Goodman's alleged retaliation against the threatened filing of such a lawsuit can serve as the basis for a separate cause of action.
The lawsuit threatened by Scott alleges an ongoing policy of system-wide retaliation against "membership in and activities on behalf of [Local 100] . . . and designed to chill the free speech and free associational activities of TA and MTA employees." (Comp. at P 1.) As discussed above, Scott's participation in union leadership, criticism of the TA, and representation of workers at grievance proceedings go well beyond her own individual grievances or any purely personal interest. Indeed, Scott had the opportunity to resolve her complaint on a personal level by accepting Goodman's offer of a position, but she instead subsequently chose to air a broader set of grievances in the public forum of a civil lawsuit. Cf. Yatvin, 840 F.2d at 419-20 (no evidence that plaintiff wanted to bring to public attention issues of discrimination nor that lawsuit sought relief against pervasive or systemic misconduct by a public agency or public officials).
Therefore, as the subject matter of Scott's threatened lawsuit was and is a matter of public concern, her filing of the action implicates public concerns and thus properly forms the basis for a section 1983 action. See, e.g., Zorzi v. County of Putnam, 30 F.3d 885, 896 (7th Cir. 1994) (alleging retaliatory firing in response to political speech); Womack v. Munson, 619 F.2d 1292, 1297 (8th Cir. 1980), cert. denied, 450 U.S. 979, 67 L. Ed. 2d 814, 101 S. Ct. 1513 (1981) (Title VII suit alleging racial discrimination).
2. Fed. R. Evid. 408 As Applied To Goodman's Offer
Defendants' reliance on Rule 408 is likewise misplaced. While Rule 408 generally prohibits admission of statements made during settlement negotiations offered in order "to prove liability for or invalidity of the claim or its amount[,]" Fed. R. Evid. 408, the Rule "does not require exclusion when the evidence is offered for another purpose . . . ." Id.15 Indeed, the force of Rule 408 is "inapplicable when the claim is based upon some wrong that was committed in the course of the settlement discussions . . . ." Wright & Graham, Federal Practice and Procedure: Evidence § 5314, at 282 (1980). See, e.g., Urico v. Parnell Oil Co., 708 F.2d 852 (1st Cir. 1983) (evidence not barred when offered to prove failure to mitigate damages); Olin Corp. v. Insurance Co. of North America, 603 F. Supp. 445 (S.D.N.Y. 1995) (evidence of settlement negotiations not barred on claim that insurance carrier failed to settle in bad faith).
Although Goodman's offer to settle would not be admissible as an admission of liability on the underlying anti-union claim, Rule 408's prohibition is "inapplicable" where, as here, the waiver-of-rights claim is based upon an alleged wrong -- i.e., the conditioning of Scott's reinstatement on the waiver of her First Amendment right to commence a lawsuit -- committed during the course of alleged settlement discussions. In these circumstances, Goodman's statements are the very source and substance of a different and independent First Amendment cause of action. See, e.g., Cassino v. Reichhold Chem., Inc., 817 F.2d 1338, 1342-43 (9th Cir. 1987), cert. denied, 484 U.S. 1047, 98 L. Ed. 2d 870, 108 S. Ct. 785 (1988) (Rule 408 inapplicable where "coercive" settlement agreements are probative on the issue of retaliatory discrimination); Blue v. R.R. Donnelley & Sons. Inc., 1996 U.S. Dist. LEXIS 15629, No. 95 C 5489, 1996 WL 613161 at *6 (N.D. Ill. Oct. 22, 1996) (proposed settlement agreement admissible "for the disparate purpose of supporting a retaliatory discharge claim."); Resolution Trust Corp. v. Blasdell, 154 F.R.D. 675, 680 (D. Ariz. 1993) (permitting evidence of settlement negotiations offered not "to prove liability, but rather to reveal . . . RTC's improper retaliatory motive for filing" lawsuit).
The Rule 408 analysis does not, however, end the inquiry. Where evidence concerning statements or conduct occurring during settlement negotiations is held not to be barred under Rule 408, the trial court must then perform a balancing test under Rule 403, weighing the probative value of the proffered evidence against its potential for unfair prejudice to the objecting party. See Weir v. Fed. Ins. Co., 811 F.2d 1387, 1395 (10th Cir. 1987) (when evidence admitted to prove something other than liability under Rule 408, concerns of Rule 403 may still come into play); McCormick on Evidence, § 266 at 196-97 (4th ed. 1992). In the instant case, the outcome of the Rule 403 analysis might well turn on the District Court's decision as to whether Scott is collaterally estopped from relitigating her charge of anti-union animus. If the District Court agrees that that claim is removed from the case, then no danger exists that the jury will improperly use Goodman's statement as a concession of liability on the anti-union claim -- a form of unfair prejudice that Rule 408 was designed to avoid.
See Fed. R. Evid. 408, Advisory Committee Notes (West 1984) (Rule 408 was drafted to encourage the settlement of disputes and to prevent prejudice against a party who might make statements during negotiation "motivated by a desire for peace rather than from any concession of weakness of position.").
In any event, whatever the trial court's decision on the Rule 403 balance, Rule 408 itself should not bar Scott's waiver-of-rights claim.
Defendants also assert that the waiver-of-rights claim is moot because "the arbitrator determined the respective rights of Ms. Scott and the Authority . . . [and] she has obtained all the relief to which she would be entitled . . . ." (Def. Mem. 12/14/95 at 3.) This Court disagrees.
In McDonald v. City of West Branch, 466 U.S. 284, 290, 104 S. Ct. 1799, 1803, 80 L. Ed. 2d 302 (1984), the Supreme Court unequivocally held that
although arbitration is well suited to resolving contractual disputes . . . it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard. As a result, according preclusive effect to an arbitration award in a subsequent § 1983 action would undermine that statute's efficacy in protecting federal rights.
This rule has been consistently applied in the Second Circuit. See, e.g., Bates v. Long Island Railroad Co., 997 F.2d 1028, 1034 (2d Cir.), cert. denied, 510 U.S. 992, 126 L. Ed. 2d 452, 114 S. Ct. 550 (1993); Coppinger v. Metro-North Commuter R.R., 861 F.2d 33, 38-39 (2d Cir. 1988).
Had Scott requested identical relief to that received in the arbitration proceeding, then the liveliness of her claim might well be in dispute. However, in her waiver-of-rights claim Scott insists that the TA's conduct warrants injunctive relief, compensatory damages, and punitive damages. (See Comp., PP 110-12 et seq. ; "Prayer For Relief.") The only remedial issue before the Impartial Arbitrator was back pay, and the Arbitrator awarded ten days' worth. Thus, contrary to defendants' contention, Scott has not already received all the relief to which she would be entitled if she prevailed at trial on this aspect of the First Cause of Action.
Therefore, defendants' mootness argument cannot be sustained.
D. Plaintiffs' Cross-Motion For Summary Judgment
Plaintiffs cross-move for summary judgment on both aspects of the First Cause of Action.
Positing that Scott has made out a prima facie case of retaliation under Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977), plaintiffs contend that the burden has been shifted to defendants to show either (1) that they would have taken the same adverse employment action -- here, failing to place Scott into a restricted duty position -- even if Scott had not engaged in the protected conduct, or (2) that Scott's protected conduct interfered with the efficiency of the TA's operations. (Pl. Mem. 4/1/94 at 7-8.) Plaintiffs claim that Goodman and the TA cannot meet this burden, and they cite the TA's alleged failure to show that its operations were impeded by Scott's activities as well as the Impartial Arbitrator's decision that the TA acted improperly in some respects. (Id. at 8-9.)
Mt. Healthy does indeed shift the burden to a defendant-employer once a plaintiff establishes that her protected conduct was a substantial or motivating factor underlying the adverse employment action. Mt. Healthy, 429 U.S. at 286, 97 S. Ct. at 576. However, on a motion for summary judgment, the moving party bears the burden of establishing that, viewing the evidence and all factual inferences in the light most favorable to the opposing party, no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). A genuine issue exists when the evidence surrounding a disputed material fact could lead a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S. Ct. at 2510. At the summary judgment stage, the Court's function is "not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S. Ct. at 2511.
In view of the material issues in dispute in this case -- both as to defendants' motivation and causation -- summary judgment is not appropriate. Defendants have proffered some justification for their determinations, arguing that the TA's standard policies do not provide for placement of an employee with the particular medical restrictions placed on Scott at that time. (See Def. Mem. 5/16/94 at 3.) The Second Circuit has noted that "summary judgment is inappropriate when questions of motive predominate in the inquiry about how big a role the protected behavior played in the employment decision." Piesco, 933 F.2d at 1154 (quotes and citations omitted). See also Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984) (summary judgment inappropriate where intent or state of mind are implicated); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (court should not draw inferences on motive at summary judgment stage). Further, notwithstanding plaintiffs' claim to the contrary, the decision of the Arbitrator is not binding in this action, see McDonald, 466 U.S. at 292 and n.13, 104 S. Ct. at 1804 and n.13 (Supreme Court adopted "no standards as to the weight to be accorded an arbitral decision"), and thus the trier of fact will make its own determinations as to the relevance and meaning of Goodman's conduct and statements. Indeed, even if a prima facie case of motivation had been established, Mt. Healthy provides that the trier of fact should make the determination whether the employer is able to prove a defense. 429 U.S. at 287, 97 S. Ct. at 576. Inasmuch as reasonable minds could differ as to both the TA's reasons for not assigning work to Scott as well as Goodman's motivation in making his conditional offer, it is the recommendation of this Court that plaintiffs' cross-motion for summary judgment be denied.
II. THE TENTH CAUSE OF ACTION
In the Tenth Cause of Action, plaintiff Cantrell alleges that defendant Goodman disciplined him in response to Cantrell's repeated concerns about what Cantell perceived to be the unsafe operation of transit trains as well as for his speech and associational activities in connection with Local 100 and New Directions. (Comp. at P 97.) Specifically, Cantrell states that he made repeated complaints to the TA that "passenger safety was being subordinated to maintaining train schedules, and that supervisors were insisting that I operate trains unsafely, at speeds above those permitted by Transit Authority regulations." (Affidavit of Robert Cantrell ["Cantrell Aff."] at P 3.) In 1990, Cantrell was dismissed and then reinstated but demoted. (Id. at PP 4-5.)
In 1991 Cantrell joined New Directions, ran for union office on its ticket, and campaigned with the organization against a proposed collective bargaining agreement between the TA and Local 100 ("Vote No Campaign"). (Id. at P 6.) According to Cantrell, he encountered Goodman on "numerous occasions" at the TA's offices in Brooklyn and was often wearing New Directions buttons on those occasions, including at a face-to-face meeting with Goodman in Goodman's office. (Id. at PP 7-8.) Goodman, on the other hand, testified that he was not even aware of Cantrell's union activities. (Deposition of Raymond Goodman, attached as Ex. 10 to Affidavit of Evelyn Jonas dated 3/17/94 ["Jonas Aff. 3/17/94"], at 65-66.) In 1992, Cantrell applied directly to Goodman for reinstatement to his original position of train operator, whereupon a series of letters back and forth resulted in Goodman's refusal to reinstate Cantrell. (Cantrell Aff. at PP 9-11 and Exs. A-C.)
In their motion for summary judgment, defendants assert that (1) Cantrell's speech and activity do not amount to matters of "public concern" and (2) plaintiffs have produced no evidence that Goodman was aware of Cantrell's speech or activities and thus cannot prove that such First Amendment conduct was a "substantial" or "motivating" factor in Goodman's decisions. (Def. Mem. 3/17/94 at 5; Def. Mem. 11/19/93 at 8-9.) As both assertions are incorrect, defendants' motion should be denied.
B. The Public-Concern Requirement
As alleged by plaintiffs, Cantrell was disciplined in retaliation for his repeated expression of concerns about the unsafe operation of the trains as well as for his union activities. The Court thus must determine whether either amounts to a matter of public concern.
1. Safe Operation of the Trains
On its face, Cantrell's concern about the safe operation of the trains has obvious and broad implications for the TA and passengers alike. Nevertheless, this must be weighed against legitimate concerns of the employer, such as "whether the statement impairs discipline by superiors or harmony among co-workers . . . or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin, 483 U.S. at 388, 107 S. Ct. at 2899.
Here, Cantrell's concerns about safety clearly impacted upon his own performance as well as that of the TA, as described by Impartial Chair Homer C. La Rue in his Opinion following a hearing regarding Cantrell's performance:
[Cantrell] failed to maintain his schedule on the dates in question . . . . The Authority cannot perform [its] function unless its operators have the confidence and the judgment to operate the trains at the maximum allowable speed.
(Opinion and Award of the Tripartite Arbitration Board, attached as Ex. C to Pl. Counter, at 4.) Further, relying on Swineford v. Snyder County, 15 F.3d 1258 (3d Cir. 1994), defendants argue that Cantrell's safety concerns were "addressed by supervisors many times" and that "continual reiteration of a mistaken claim [is] no more than a personal grievance . . . ." (Def. Mem. 3/17/94 at 5.)
The question thus becomes the strength of Cantrell's right to speak, weighed against the apparent impairment of the TA's interests. At the outset, the extent to which Cantrell communicated his concerns to anyone but his immediate supervisors and those who had reprimanded him is far from clear. Cantrell's affidavit alleges only that "from 1988 to 1990 I complained to Transit Authority officials and the Transit Authority's Office of Investigation that passenger safety was being subordinated to maintaining train schedules, and that supervisors were insisting that I operate trains unsafely, at speeds above those permitted by Transit Authority regulations." (Cantrell Aff. at P 3.) The fact that the exhibits attached to the affidavits reflect only complaints in response to reprimands lends some credence to defendants' suggestion that this is a purely private dispute.
Nevertheless, according to the Supreme Court, the caselaw in this area "does not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly." Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414, 99 S. Ct. 693, 695-96, 58 L. Ed. 2d 619 (1979). In Givhan, a teacher was discharged because of complaints she made in private conferences with the principal. The Court nonetheless found her speech to be of public concern because it involved employment policies and practices. Id. at 413, 99 S. Ct. at 695. Similarly, in American Postal Workers Union v. United States Postal Service, 595 F. Supp. 403, 407 (D. Conn. 1984), rev'd on other grounds, 766 F.2d 715 (2d Cir. 1985), the district court found that even though a postal worker's complaints were voiced in private letters, "the effects of this dispute were not a purely private matter . . . . To the extent that the lost jobs caused a delay of the mails, the private dispute was a matter of public concern."
Safety and the proper operation of the TA and its trains are issues of paramount concern to millions of regular riders as well as to city and state politics, perhaps to an even greater extent than those upheld in other cases. See cases supra note 11. As even the Swineford court recognized, "the presumption in favor of free speech is great, and a mere showing of disruption is not, by itself, sufficient for a determination that an employee's speech is not protected." 15 F.3d at 1272. The occasional tardiness of Cantrell's train cannot compare with the disruption found in Swineford,
and the balance weighs heavily in favor of his right to speak. Thus, this Court concludes that Cantrell's speech about the safe operation of the trains is a matter of public concern.
2. Union Membership and Activity
As discussed in reference to plaintiff Scott's union activity in the First Cause of Action, this Court finds that Cantrell's membership in Local 100, active participation in New Directions, running for union office, and campaigning against a proposed collective bargaining agreement are likewise matters of public concern. See supra pp. 16-18.
C. Goodman's Knowledge of Cantrell's Union Activities
Defendants correctly note that "once the employee establishes that he has spoken as a citizen on a matter of public concern, he must also establish that the speech was at least a 'substantial' or 'motivating' factor in the discharge." (Def. Mem. 11/19/93 at 8 (citing White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir.), cert. denied, 510 U.S. 865, 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993); Mt. Healthy, 429 U.S. at 287, 97 S. Ct. at 576.)) They then posit that plaintiff Cantrell "cannot prove that [Goodman] . . . knew of these protected activities or was in any way motivated by them." (Def. Mem. 11/19/93 at 8.)
As this is a motion for summary judgment, any ambiguities must be resolved in favor of the party against whom summary judgment is sought. See, e.g., Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; Chambers, 43 F.3d at 36. To find circumstantial evidence supporting a reasonable inference that Goodman knew of Cantrell's union activities, one need look no further than Cantrell's affidavit:
Particularly during the campaign against the proposed collective bargaining agreement in late 1991 and early 1992, I encountered [Goodman] frequently at the Rapid Transit Operations offices at 370 Jay Street in Brooklyn, New York . . . . I would often be wearing New Directions buttons on my clothing when I saw Goodman in these situations . . . . I met with Goodman personally when he reinstated me from a suspension. At the time I was wearing a black and white button which said "New Directions" on it.
(Cantrell Aff. at PP 7-8.)
While this proof may or may not carry the day at a trial, this Court is unable to say that "reasonable minds could not differ as to the import of the evidence . . . ." Cable Science Corp. v. Rochdale Vil.. Inc., 920 F.2d 147, 151 (2d Cir. 1990). There thus exists a genuine issue of material fact, and defendants' motion for summary judgment should be denied.
III. THE ELEVENTH AND TWELFTH CAUSES OF ACTION
In the Eleventh and Twelfth Causes of Action, plaintiffs assert that the TA's rule prohibiting the wearing of buttons or other insignia ("No Button Rule") is unconstitutional both on its face and in its application.
The TA's Rule 10(f)
Employees required to wear uniforms must at all times when on duty wear the prescribed uniform and badge. The uniform must be kept neat and in good repair. Uniformed employees are not permitted to wear buttons, badges or other insignia other than those specified as part of the regulation uniform, except by permission of the Authority.